On June 12, 2020, the Supreme Court of Canada offered new insight into the scope of Charter damages in Conseil Scolaire francophone de la Colombie‑Britannique v. British Columbia (“Conseil”).1 The Court further delineated the limited immunity to Charter damages previously espoused in its decision in Mackin v. New Brunswick (Minister of Finance) (“Mackin”), in which the Court held that absent conduct that is wrong, in bad faith, or an abuse of power, public bodies are not liable for Charter damages for the mere enactment or application of legislation later declared unconstitutional.2 In Conseil, the Court considered whether this same immunity attaches to decisions made pursuant to government policies. In answering no to this question, the Majority of the Court ordered the Province to pay $7.1 million in Charter damages to British Columbia’s only French-language school board for violations of the minority language education rights enshrined by section 23 of the Charter. Below is the summary of the Court’s reasons and a discussion of the potential liability implications for local governments and other administrative bodies.
Conseil was a civil claim by the Conseil Scolaire francophone de la Colombie‑Britannique (“CSF”), the Fédération des parents francophones de Colombie‑Britannique and three parents who are rights holders under section 23 of the Charter (“Appellants”) against the Province of British Columbia for alleged systemic underfunding of French-language education in the Province. The Appellants claimed that several aspects of the Province’s education funding system, including chronic underfunding for school transportation and lack of space for cultural activities, infringed the Appellants’ minority language education rights under section 23 of the Charter. The Appellants sought declarations of invalidity in connection with certain aspects of the Province’s capital funding system pursuant to section 52(1) of the Constitution Act, 1982, as well as a range of remedies under section 24(1) of the Charter, including declarations of positive rights, a trust remedy, a duty to consult, and Charter damages.
The Appellants were partially successful at trial, obtaining a $6 million award of Charter damages to CSF, the Province’s only French-language school board, for a deficit incurred by the school board as a result of the Province’s freeze on school transportation funding. The British Columbia Court of Appeal agreed that the Province’s school transportation funding freeze unjustifiably infringed section 23 of the Charter, but set aside the award of Charter damages to CSF on the basis that the Province benefited from the qualified immunity to Charter damages established by the Supreme Court of Canada in Mackin.
The Supreme Court allowed the Appellants’ appeal in part, finding several infringements of section 23 of the Charter, issuing various declarations of substantive rights, and reinstating the trial judge’s $6 million Charter damages award for the Province’s freeze on school transportation funding. The Court awarded an additional $1.1 million in damages to the CSF for a shortfall it incurred as a result of the Province’s refusal to extend it an annual facilities grant.
No Immunity from Charter Damages
In reinstating the Charter damages award against the Province, the Majority found that the Province’s school transportation funding freeze and its refusal to extend the annual facilities grant to the CSF did not attract any of the limited immunities to Charter damages previously entertained by the Court. According to the Majority, while governments do enjoy immunity to Charter damages where there are countervailing considerations, including the existence of alternative remedies and concerns for good governance, there is no immunity for government policies that violate the Charter.
The Majority distinguished the case before it from its decision in Mackin, in which the Court held that absent conduct that is “clearly wrong, in bad faith or an abuse of power”, there is limited immunity from Charter damages for the enactment or application of duly enacted laws subsequently found to violate the Charter. According to the Majority, the rationale for this limited immunity is that the legislature and law enforcement must be able to perform their functions without fear of reprisal.3
In justifying its distinction between law and policy in the context of Charter damages, the Majority reasoned that because the concept of “government policy” is not clearly defined, a blanket immunity attaching to “government policies” would be overly broad and may reduce access to justice for individuals whose Charter rights have been infringed.4 By contrast, the Court opined that because laws are easily identifiable instruments created pursuant to a transparent and democratic process, it is appropriate and just to extend a limited immunity to the enactment and application of such instruments.5 The Majority also concluded that government immunity for acts carried out under duly enacted laws is compatible with the well-established principle that Parliament and provincial legislatures cannot be held liable for anything they do in exercising their legislative powers.6
The Majority confirmed that in accordance with the Court’s decision in Vancouver (City) v. Ward, 2010 SCC 27 (“Ward”), the general rule continues to be that while Charter damages can be awarded against a government where they are an appropriate and just remedy in the circumstances, governments may avoid such an award by raising concerns for effective governance.7 While the Majority closed the door on Charter damages immunity for government policies, it left open the possibility of a future immunity being recognized for other government instruments, such as orders in council and regulations.8
An Arbitrary Distinction between Law and Policy?
In their dissenting opinion, Brown and Rowe JJ. agreed that Charter damages were warranted in this case, but unlike the Majority, concluded that the immunity set out in Mackin generally applies to government policies.9 According to the Dissent, any lingering doubt about the application of the immunity to government policies was dispelled in Ward, in which the Court specified as follows:
“The Mackin principle recognizes that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy‑making functions are one such area of state activity. The immunity is justified because the law does not wish to chill the exercise of policy‑making discretion.” [Emphasis added]10
The Dissent opined that a sphere of immunity reserved exclusively for legislation places an arbitrary emphasis on the vehicle of state action as opposed to its substance.11 Brown and Rowe JJ. concluded that whether the state acts through legislation or policies, the rationale behind the immunity is that the state should be able to carry out its function without the threat of damages, absent some threshold of bad faith or misconduct.12
Despite their rejection of the Majority’s law/policy dichotomy, Brown and Rowe JJ. nevertheless concluded that an exception from Mackin immunity is warranted for violations of section 23 of the Charter, which uniquely imposes positive obligations on the government to enact legislation, establish policies, and expend public funds to give effect to the rights enshrined therein.13 According to the Dissent, the good governance rationale underlying Mackin immunity does not apply to the government’s failure to fulfill its positive obligations under the Charter.14
Uncertainties for Local Governments and other Administrative Bodies
The Majority’s explicit exclusion of “government policies” from the good governance immunity renders municipal and administrative entitlement to the immunity uncertain. Given the imprecise nature of government policies – indeed, the Majority excluded policies from the immunity for the very reason that they are difficult to define – municipalities and other administrative bodies may be hard-pressed to distinguish their decisions from policies. Such a task is further complicated by the fact that municipal and administrative actions do not qualify as legislation in the strict sense of the word. While the Majority left the door open for the future inclusion of other legal instruments in the sphere of immunity, the question in the meantime remains: what types of administrative actions can be distinguished from “government policy”?
Municipal and administrative by-laws and rules may be easier to categorize within the law/policy dichotomy. While administrative by-laws are not legislation enacted by the provincial legislature or Parliament, they share many of the same features as legislation that the Majority in Conseil reasoned justify the immunity: they are clearly defined instruments that – at least in the case of Municipal by-laws – are created pursuant to a transparent and democratic process. In fact, the Supreme Court of Canada in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component (“Vancouver Transportation Authority”) equated administrative rules to legislation by concluding that “binding policies” adopted by government entities can be characterized as “law” for the purposes of obtaining a remedy under section 52(1) of the Constitution Act, 1867.15 In Vancouver Transportation Authority, the Court found that two articles of the Vancouver Transportation Authority’s Policy concerning transit advertising were of no force or effect pursuant to section 52 of the Constitution Act, 1867.16 Similarly, the British Columbia Court of Appeal in Victoria (City) v. Adams held that the impugned municipal by-laws and operational policies in that case were properly characterized as “laws” within the meaning of section 52 of the Constitution.17
The classification of other municipal and administrative decisions is less clear. Municipal policies such as Official Plans are clearly policies, not law,18 yet because section 5(3) of the Municipal Act, 2001, SO 2001, c 25 mandates that all municipal powers must be exercised by by-law, many municipalities in Ontario implement policies through “confirmatory by-laws” at the conclusion of council meetings. The question then arises: is a municipal policy implemented pursuant to a confirmatory by-law still a policy for the purposes of Charter damages immunity? A court might not entertain such a technical argument for instruments that are clearly labeled “policies”, but what about municipal council resolutions? Resolutions, like municipal policies, are often implemented through confirmatory by-laws, and are used to record the decisions and wishes of municipalities for both operational and policy matters. If a resolution implemented through a confirmatory by-law pertains to a matter of policy, is it a policy or a law or something else entirely?
The Courts rarely have occasion to distinguish municipal and administrative action between law and policy, frequently subsuming policy decisions into the category of “administrative legislation”. In Shell Canada Products Ltd. v. Vancouver (City), for instance, the Supreme Court of Canada characterized the City of Vancouver’s resolution to boycott Shell Canada as “municipal legislation”, even though the City had not implemented the policy pursuant to a by-law.19 Similarly, in East Durham Wind, Inc. v. The Municipality of West Grey, the Divisional Court included Municipal “policies” in its definition of “administrative legislation”.20
Navigating Private and Public Law: Which “Core” Policy Decisions are “Policies”?
The well-established “core policy”/ “operational decision” dichotomy in negligence law further obfuscates what constitutes a “government policy” under the new Conseil framework. This principle holds that generally, government bodies cannot be held liable for private law damages in negligence for “core” policy decisions – that is, decisions based on public policy considerations, such as economic, social and political factors.21 Under this model, both legislation and “core policy” decisions are immune from liability in negligence.22 The new Conseil framework now requires the extraction of “Government policies” from this previously-established category of “core policy decisions”, a task further complicated by the Courts’ previous use of the “core” policy framework to inform entitlement to Charter damages. For example, on April 20, 2020, approximately 1.5 months prior to the Supreme Court’s release of its decision in Conseil, the Ontario Superior Court of Justice in Francis v. Ontario opined that the Mackin principle is a public law complement to the private law distinction between government legislative activities (including its “core” policy decisions) and operational decisions.23
Similarly, in 2017, the Supreme Court of Canada in Ernst v. Alberta Energy Regulator adopted these principles from negligence law to shield the Alberta Energy Regulator, an administrative body, from Charter damages. The Majority applied the Mackin “good governance” immunity to the Regulator, reasoning that the same rationales for limiting private law damages against state actors for claims in negligence applied to the Plaintiff’s claim for Charter damages against the Regulator.24 The administrative action at issue in Ernst was the Regulator’s decision to prevent the Plaintiff from communicating with the Regulator for a period of 16 months. The Plaintiff alleged that the communication ban violated her freedom of expression under section 2(b) of the Charter. In striking the Plaintiff’s claims for Charter damages against the Regulator, the Majority reasoned that to expose the Regulator to Charter damages would distract it from its statutory duties, potentially result in a chilling effect on its decision making.25 While the Court in Ernst did not classify the impugned decision as a policy or otherwise, the Majority nevertheless applied the private law rationales that the courts have previously attributed to “core” policy decisions.
Despite these decisions, the Majority’s distinction between law and policy in Conseil illustrates that the “core” policy/ operational dichotomy in negligence law does not transpose seamlessly onto claims for Charter damages. What one may classify as a “core policy decision” in negligence law may not constitute a “government policy” in the context of Charter damages. While the courts have endorsed the “practical wisdom” of the private law for assessing liability for damages against the State,26 the Supreme Court in Ward was clear that Charter damages, unlike private law damages in tort, are public law damages, a separate and distinct category of compensation against the state reserved specifically for breaches of individuals’ constitutional rights.27 The Majority’s decision in Conseil exposes the practical consequence of this theoretical distinction.
Remedies under section 24 Charter remain a dynamic area of law. Until the Courts pronounce further on the implications for municipal and administrative bodies under the Conseil framework, municipal and administrative lawyers will have to argue for the good governance immunity on a case-by-case basis. Perhaps the above will provide some helpful considerations for anticipating this task.
1 Conseil Scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13 [“Conseil”].
2 Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 at para 78 [“Mackin”].
3 Conseil, supra note 1 at para 168.
4 Ibid at para 172, 173.
5 Ibid at para 173.
6 Ibid at para 176.
7 Ibid para 179.
8 Ibid at para 178.
9 Ibid at para 265.
10 Vancouver (City) v. Ward, 2010 SCC 27 at para 40.
11 Conseil, supra note 1 at para 293.
13 Ibid at paras 297 – 300.
15 Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at paras 87, 90.
16 Ibid at para 90.
17 Victoria (City) v. Adams, 2009 BCCA 563 at para 51.
182222868 Ontario Inc. v. Grimsby (Town), 2020 ONCA 376 at para 32.
19 Shell Canada Products Ltd. v. Vancouver (City), 1994 CarswellBC 115 at para 112,  1 SCR 231.
20 East Durham Wind, Inc. v. The Municipality of West Grey, 2014 ONSC 4669 at para 26.
21 R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 90.
22 Francis v. Ontario, 2020 ONSC 1644 at para 388.
23 Ibid at para 578.
24 Ernst v. Alberta Energy Regulator, 2017 SCC 1 at paras 42-49.
25 Ibid at para 55.
26 Ibid at para 43.
27 Ward, Supra note 13 at para 22.